PRIVATE CLUBS DEFINED FOR STATE SMOKING STATUTES
Title III of the Americans with Disabilities Act (ADA) applies to public accommodations and the ADA definition for private clubs is the most appropriate definition for a private club exemption in a state smoking statute.
The statute applicable to exemptions for private clubs and religious organizations under the ADA is 42 U.S.C. § 12187 and it states:
The provisions of this title [42 U.S.C. §§ 12181 et seq.] shall not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000-a(e)) [42 U.S.C.S. §§ 2000a et seq.] or to religious organizations or entities controlled by religious organizations, including places of worship.
The U.S. Department of Justice (DOJ) interpreted its ADA Title III regulations in Appendix B of 28 C.F.R. Part 36 regulations, stating:
The term “private club” is defined in accordance with section 307 of the ADA as a private club or establishment exempted from coverage under title II of the Civil Rights Act of 1964. Title II of the 1964 Act exempts any “private club or establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the customers or patrons of a place of public accommodation as defined in title II.” See 28 C.F.R. Part 36, App. B, § 35.36.104, page 688 (7-1-06 Edition).
In determining whether a private entity qualifies as a private club under title II [of the Civil Rights Act], courts have considered such factors as the degree of member control of club operations, the selectivity of the membership selection process, whether substantial membership fees are charged, whether the entity is operated on a nonprofit basis, the extent to which the facilities are open to the public, the degree of public funding. … Id. at 688-89.
The DOJ cited a number of court decisions upon which its interpretation of private club is based and one of those decisions is the Supreme Court decision in Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697 (1969).
In Daniel v. Paul, the Supreme Court held that a public accommodation was not a private club if the establishment served or offered to serve interstate travelers, or if a substantial portion of the food which it serves, or gasoline or other products which it sells, has moved in commerce. Id. at 303.
Moreover, the Supreme Court has held that the exemptions for a private club are narrowly construed and that the burden of proof rests on the party claiming the exemption. See Martin v. P.G.A. Tour, Inc., 984 F.Supp. 1320, 1323 (D.Or. 1998), affirmed P.G.A. Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001).
Therefore, a majority of the “private clubs” that are exempted from state and local clean indoor air acts or ordinances do not qualify as private clubs under Title III of the ADA.
For example, the American Airlines Admiral’s Club at the DFW Airport is exempted from the City of Grapevine, Texas, smoking ordinance as a “private airline club.” The DFW Admiral’s Club serves and offers to serve interstate travelers, its members have no control over club operations and American Airlines solicits members and the Club is operated solely as a business to generate profits for American Airlines.
Moreover, the U.S. Department of Transportation (DOT) has specifically held that the airline clubs are not “private clubs” that are exempted from the ADA. In a Notice of Final Rulemaking, the DOT stated:
We point out that not only the general terminal areas but also some areas open to part of the traveling public (e.g. the airline “clubs” providing special accommodations in terminals to frequent fliers or persons who pay a fee to the airlines) are subject to the accessibility requirements of this rule. These are spaces, that in Title III terms, would be places of public accommodation, and it is unlikely that most would fall within the limited “private club” exemption to the ADA, as defined in the Department of Justice Title III rules. One implication of this is that, if telephone service is provided to members within the “club” space, then TDD requirements would apply to the “club.” It would not be consistent with the rules for the carrier to refer the passenger to a TDD phone in the general passenger areas of the terminal, … See Federal Register / Vol. 1, No. 213 / Friday, November 1, 1996, page 56409, 56417.
It is well-settled that a state can violate the ADA by enacting statutes that discriminate in violation of the ADA. In such cases states have made settlement agreements with the U.S. Department of Justice requiring the state to repeal or modify their statutes. For Example:
Under the ADA, in United States of America v. State of Tennessee, the Consent Order and Final Judgment states:
10. The Tennessee Department of Personnel agrees to present to the Governor for inclusion in his legislative package, which will be submitted to the Tennessee Legislature in 2003, and thereafter as necessary, a request to rescind Tennessee Statutes § 41-1-116, § 37-5-117, § 8-8-102, and § 38-8-102 and § 38-8-106. The Tennessee Office of the Attorney General agrees to inform the Tennessee Legislature that Tennessee Statutes § 41-1-116, § 37-5-117, § 8-8-102, and § 38-8-102 and § 38-8-106 are invalid because they conflict with federal law.
11. Defendant State of Tennessee agrees not to enforce or implement Tennessee Statutes § 41-1-116, § 37-5-117, § 8-8-102, and § 38-8-102 and § 38-8-106.
Under the ADA, in Crowder and Cote and United States of America v. State of Hawaii, the Settlement Agreement states:
1. Proposal of Rule. The State of Hawaii agrees to propose to the Hawaii Board of Agriculture adoption of the Draft Rule contained in Appendix 1 of this Settlement Agreement. This Draft Rule provides that, under specified conditions, persons with visual impairments who rely on guide dogs are to be exempted from the 30-day quarantine and 90-day pre-entry deadlines required by Hawaii’s May 1997 Rule. See also Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996).
Moreover, in Helen L. v. DiDario, 46 F.3d 325 (3rd Cir. 1995), the U.S. Court of Appeals for the Third Circuit held that: “The ADA applies to the General Assembly of Pennsylvania, and not just to the DPW [Department of Public Welfare].” Id. at 338.
The DOJ interpreted its ADA Title III regulations as applying to individuals with respiratory impairments that are substantially limited by cigarette smoke in 28 C.F.R. Pt. 36, Appendix B, § 36.104 (7-1-06 Edition), page 684.
In defining Substantial Limitation of a Major Life Activity, the DOJ stated:
Many commenters asked that environmental illness (also known as multiple chemical sensitivity) as well as allergy to cigarette smoke be recognized as disabilities. The Department, however, declines to state categorically that these types of allergies or sensitivities are disabilities, because the determination as whether an impairment is a disability depends on whether, given the particular circumstances at issue, the impairment substantially limits one or more major life activities (or has a history of, or is regarded as having such an effect). Id. at 684.
Sometimes respiratory or neurological functioning is so severely affected that an individual will satisfy the requirements to be considered disabled under the regulation. Such an individual would be entitled to all of the protections afforded by the Act and this part. In other cases, individuals may be sensitive to environmental elements or smoke but their sensitivity will not rise to the level needed to constitute a disability. Id. at 684.
In sum, the determination as to whether allergies to cigarette smoke, or allergies or sensitivities characterized by the commenters as environmental illness are disabilities covered by the regulation must be made using the same case-by-case analysis that is applied to all other physical or mental impairments. Id. at 684.
Therefore, in order to be in compliance with the ADA, the definition of “private club” in state statutes should be consistent with the private club definition applicable to Title III of the ADA.
The statutes and regulations cited above can be accessed at http://www.law.cornell.edu
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